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IN THE PESHAWAR HIGH COURT,

PESHAWAR (Judicial Department)

Civil Revision No.287-P/1998

Date of hearing: 02.05.2016

Petitioner (s) : Raza Quli Khan and others by Mr. Ghulam

Mohayuddin Malik, Advocate.

Respondent (s) : Mehmood Jan and others by Mr. Abdul Sattar

Khan, Advocate.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, C.J.- This revision

petition calls in question the legality and propriety of

judgment and decree dated 07.10.1992, passed by Trial

Court/ Senior Civil Judge, Peshawar and that of learned

Appellate Court/ Additional District Judge, Peshawar dated

18.05.1998, whereby suit of the plaintiff-respondents has

been concurrently decreed by both the Courts blow.

2. Succinctly stated the facts forming the

background of the instant revision petition are that, plaintiff-

respondents Mehmood Jan etc (sons and daughters of

Muhammad Akram Khan), filed a suit bearing No.412/1 of

1980 against Major General (Rtd) Habib Ullah Khan and

others, defendant-petitioners, for declaration to the effect that

they are owners in possession of 100 Kanals of land in suit

Khasra numbers, mentioned in detail in the heading of the

plaint, situated within the revenue estate of Moza Haryana

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Payan Peshawar and the defendant-petitioners have no

concern whatsoever with the same, hence, entries in the

revenue record in favour of the defendant-petitioners on the

basis of mutations No.637, 638, 643 and 644, by virtue of

alleged un-registered sale deeds being the result of fraud and

collusion, are liable to be cancelled.

3. The suit was contested by the defendant-

petitioners by filing written statement, raising therein variety

of objections, legal as well as factual. From the controversial

pleadings of the parties, the learned Trial Court formulated

issues, upon which both the parties led their respective

evidence. On conclusion of trial, the learned Trial Court, vide

judgment dated 07.10.1992, by setting aside the impugned

mutations, passed a partial decree to the extent of land

measuring 72 Kanals 01 marla in favour of the respondent-

plaintiffs, however, rest of their claim was dismissed.

4. Feeling aggrieved from the judgment and

decree of the Trial Court, defendant-petitioners, filed Civil

Appeal No.265/13, before the learned Additional District

Judge, Peshawar, who by allowing the appeal vide judgment

and decree dated 13.02.1993, set-aside the judgment and

decree of the learned Trial Court and remanded the case to

the Trial Court for decision afresh after recording evidence

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on the additional issues framed by the learned Appellate

Court.

5. Both the parties assailed the judgment of the

learned Appellate Court by filing separate revision petitions

before this Court, which were disposed of on mutual consent

of learned counsel for the parties that there was no need of

framing additional issues and remanding the case to the Trial

Court for decision afresh. Consequently, this Court by setting

aside the judgment and decree of the learned Appeal Court

dated 13.02.1993, remanded the appeal to it for decision

afresh, on merits, on the available evidence and record. On

receipt of the record, the learned Appellate Court after

hearing both the sides, vide judgment18.05.1998, dismissed

the appeal of the petitioner-defendants and maintained the

judgment and decree of the learned Trial Court dated

07.10.1992, hence, this revision petition.

6. Learned counsel for the petitioner-defendants

argued that the suit of the respondent-plaintiffs is hit by the

principle of resjudicata; that though this ground has not been

taken specifically in the written statement, but being pressed

during arguments before the two Courts below as well as

discussed in the impugned judgments coupled with the fact

that it being a pure question of law, can be agitated at any

stage; that the findings of the two Courts below on the

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principle of resjudicata are bad in law. He while referring to

order dated 08.10.2012 of this Court contended that during

pendency of the instant petition, the petitioner-defendants

filed application for amendment in the written statement, but

the application was not pressed on the agreement of the

learned counsel for the respondent-plaintiffs who conceded

and agreed that petitioner-defendants may agitate and argue

the applicability of principle of resjudicata before this Court.

He next argued that suit No.175/1 of 1960

decided on 28.4.1962, in respect of partition was filed by

Major General (Rtd) Habib Ullah (father of the petitioner-

defendants) in which Muhammad Akram (father of the

respondent-plaintiffs) was defendant No.3; that judgment of

the appellant Court in the said suit in favour of predecessor of

the petitioner-defendants to the extent of his entitlement of

232 Kanals and 10 marlas land, has attained finality,

therefore, the instant suit of the plaintiff-respondents being in

respect of the same subject matter/ suit land and between the

same parties, is hit by the principle of resjudicata, hence, was

liable to be dismissed on this sole ground; that about 40/50

years back the petitioner-defendants purchased the aforesaid

property through various un-registered sale deeds as well as

Court decrees, followed by attestation of the impugned

mutations which have been duly incorporated in the revenue

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record; that sufficient revenue record has been produced and

exhibited by the petitioner-defendants which supports their

stance coupled with the long standing un-rebutted entries in

the revenue record in their favour, but both the Courts below,

without adverting to these crucial aspects of the case, landed

in the field of error by granting decree in favour of the

respondent-plaintiffs, who have badly failed to discharge the

initial burden of proving their claim through cogent and

confidence inspiring evidence, therefore, the impugned

judgments and decrees being the result of misreading and

non-reading of evidence, are liable to be reversed.

7. Conversely, learned counsel for the plaintiff-

respondents argued that suit No.175/1 of 1960 was decided

on 28.04.1962 and appeal there-against was decided on

21.10.1964, whereas the impugned mutations vide which the

ownership and entitlement of the plaintiff-respondents has

been reduced were attested on 29.11.1966, i.e. much after the

aforesaid suit; that it was after 29.11.1966, when a fresh

cause of action accrued in favour of the plaintiff-respondents,

hence, the instant suit has rightly been filed; that cause of

action and subject matter of the previous suit were altogether

different from the instant suit, therefore, the principle of

resjudicata does not attract in the circumstances. On merits,

learned counsel contended that plaintiff-respondents have

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proved their entitlement and ownership of the suit property

through sufficient documentary evidence in the shape of

revenue record and pre-emption suits vide which the suit land

was acquired by Muhammad Akram Khan (predecessor of

the plaintiffs); that the suit property was, later on, mortgaged

with defendant No.3, but in presence of said entries, fake,

fictitious and fraudulent entries with the collusion of the

revenue officials, by way of impugned mutations were made

in favour of defendant No.1, therefore, the learned Trial

Court has rightly cancelled the impugned mutations and

passed decree in favour of the plaintiff-respondents to which

no exception can be taken.

8. Learned counsel for the parties were heard and

record of the case was perused with their able assistance.

9. Since, the principle of resjudicata was pressed

vehemently by the learned counsel for the petitioner-

defendants therefore, this Court would like to take the same

first.

Since the question of resjudicata normally

becomes a mixed question of facts and law, hence, before

going to determine the legal aspect of application of this

question, one has to consider its factual aspect first and then

its legal implication. This Court is also aware of the fact that

the question of resjudicata was not taken as a defence in the

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written statement, however, was argued before the Trial

Court, but was not considered simply for the reason that the

same was not part of the pleadings, but in appeal it was

argued and considered by the learned Appellate Court by

holding that this principle is not applicable in the

circumstances. During pendency of this civil revision, much

effort was made to agitate the question of resjudicata and

vide order dated 08.10.2012, it was settled that it being a

question of fact and law can be raised at any stage.

Record of earlier suit No.175/1 of 1960, was

requisitioned by this Court on the request of the learned

counsel for the petitioner-defendants, which proved to be

very fruitful in deciding the controversy in hand. The said

suit had been filed by Maj. General (Rtd) Habib Ullah (father

of the present petitioner-defendants), against Muhammad

Saeed and 10 others defendants, in which Muhammad Akram

(father of the present plaintiff-respondents) was defendant

No.3. Declaration in respect of 236 Kanals and 13 marlas

land was sought by the plaintiffs in the said suit alongwith a

prayer to declare the partition as null and void, conducted by

the Revenue hierarchy Peshawar on 02.01.1956. A partial

decree to the extent of 232 Kanal was granted in favour of

the plaintiff Maj. General (Rtd) Habib Ullah by the learned

Senior Civil Judge, Peshawar vide judgment dated

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28.04.1962 while his claim to the extent of partition

proceeding was dismissed. Muhammad Saeed etc defendants

in the said suit assailed the judgment of the learned Trial

Court in C.A. No.286/13 of 1964. The learned Appellate

Court while deciding the appeal, modified the judgment and

decree of the Trial Court in the manner that plaintiff Maj.

General (Rtd) Habib Ullah was held entitled to the extent of

232 Kanals and 10 marlas land vide judgment dated

21.10.1964. Rests of the findings of the learned Trial Court

were maintained. The judgment of the learned Appellate

Court got finality as the same was not challenged by either

party.

10. In the earlier round of litigation, partition

proceedings and partition mutation were questioned, whereas

the plaintiff-respondents by feeling themselves aggrieved

from different mutations entered and attested at their back on

29.11.1966, much after final adjudication of the earlier suit,

have filed the instant suit. Though, parties in both the

litigations, are same, but the matter, directly and substantially

in issue, is not the same. In the present suit, the matter

directly and substantially in issue, is the sale mutations being

attested much after the final judgment in the earlier suit.

These mutations were entered and attested at the back of the

plaintiff-respondents, which gave them a fresh cause of

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action, and they accordingly, challenged the same by way of

this suit. So it can safely be held that the instant suit is not

hit by the principle of resjudicata and is maintainable.

11. Plaintiff-respndents have questioned the

transfer of property by way of mutations No.637, 638, 641,

642, 643 and 644, alleging the same to be the result of fraud

and collusion inter-se the defendant/petitioners. In support of

their claim, Mina Dad Patwari Halqa was produced as PW.1,

who produced revenue record for the year 1929-30 upto

1979-80 (Exh.PW.1/1 to Exh.PW.1/2), Khasra Girdawri

since Kharif 1968 till Kharif 1983 Exh.PW.1/13 and

mutations No.252 attested on 12.01.1951 on the basis of

registered deed No.485 dated 03.03.1948, mutation No.246

attested on 12.01.1951 on the basis of registered deed No.248

dated 06.06.1947. Abdul Rahim plaintiff No.2 appeared as

PW.2 and supported the averments of the plaint.

12. It appears from the record that Muhammad

Akram (predecessor of the plaintiff-respondents) became

owner of 20 Kanals land on the basis of a pre-emption decree

in his favour in suit No.450/1, instituted on 24.05.1948 and

decided on 01.06.1949 (Exh.PW.2/1), sold by Abdul Jalil

(predecessor of defendants No.4 to 6 and 16 to 18) and

Behram Khan (predecessor of defendants No.7 to 12).

Similarly, on the basis of another pre-emption decree in his

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favour in suit No.451/1 of 1947, decided on 16.06.1949

(Exh.PW.2/2), he got 25 Kanals land, sold by Abdul Jabbar

Khan, Abdul Ghaffar Khan sons of Mst. Muntaha daughter of

Fateh Muhammad Khan. The aforesaid land falling in Khasra

Nos.719, 721 and 722, was transferred in the name of Akram

Khan (predecessor of the plaintiff-respondents) and duly

incorporated in the revenue record. Worthwhile to mention

here that the vendees of the above said two pre-emption suits,

transferred the suit properties in the name of predecessor of

the defendant-petitioners, who was accordingly impleaded as

defendant in those suits, which were ultimately decreed in

favour of the predecessor of the plaintiff-respondents,

namely, Muhammad Akram Khan. Again an important aspect

is that these sales were effected through un-registered sale

deeds dated 31.08.1942, on the basis of (Qabala Panchaiti)

and impugned mutations are also on the basis of the same

sale deeds. This fact alone is sufficient to establish the stance

of plaintiff-respondents. In this way Muhammad Akram,

became the owner of 45 Kanals land on the basis of aforesaid

pre-emption decrees, while he purchased some property vide

mutation No.771 in Khasra No.719. Mst. Muntaha

(predecessor of defendant No.15), transferred her share in the

suit property to Ghulam Sarwar (predecessor of defendants

No.19 to 22), who later on, transferred and abandoned his

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share to Muhammad Akram. Similarly, land in Khasra

No.889/674, 804/674, fell in the entitlement of predecessor of

the plaintiff-respondents in partition.

13. It appears from the record that partition

mutation No.384 attested on 04.11.1956, was incorporated

and acted upon in Jamabandi for the year 1963-64, on the

basis whereof, predecessor of the plaintiff-respondents has

been shown owners of 58 Kanals and 6 marlas land. He was

very much satisfied with the partition mutation and never

questioned the same. It seems very strange that all of a

sudden in next Jamabandi for the year 1967-68, the

entitlement of the plaintiff-respondents was reduced to 13

Kanals and 13 marlas, instead of 58 Kanals and 6 marlas.

This decrease in the entitlement of the plaintiff-respondents

occurred by virtue of disputed mutations No.637, 638, 643

and 644 attested on 29.11.1966, and these mutations are the

bone of contention in the instant suit.

14. Record would further reveal that on the basis of

an un-registered sale deed dated 31.08.1942, predecessor of

the plaintiff-respondents has been shown to have transferred

about 23 Kanals 14 Marlas land to one Mian Muhammad

(predecessor of defendants No.23 and 24), vide mutation

No.637 attested on 29.11.1966, who, on the same day

transferred the said property in favour of predecessor of

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defendant-petitioners, vide mutation No.638. Similarly, an

area of 20 Kanals 11 marlas, has again been shown to have

been transferred by the predecessor of plaintiff-respondents

to above named Mian Muhammad vide mutation No.643 and

then it goes to predecessor of defendant-petitioners vide

mutation No.644 dated 29.11.1966. Strange to observe that

the alleged sales pertain to year 1942, but has been given

effect in the year 1966 by way of impugned mutations. Then

on the same day mutations are attested in the name of

predecessor of the defendant-petitioners and sale in his

favour has been shown by way of registered deeds, but the

same being public documents have not been proved in

accordance with law. Law on the subject is very much clear

and settled that the petitioner-defendants being beneficiaries

of the transactions, were legally bound to prove the same

through cogent and reliable evidence, but they have failed to

discharge their burden. No doubt, longstanding entries in the

revenue record are in the names of defendant-petitioners, but

the same would be of no help to them when the very

foundation of these entries becomes doubtful. So, mere

reliance on mutations without any other supporting evidence

would not be sufficient for defendant-petitioners to establish

their claim. It is very much settled that mutations are

prepared for fiscal purposes and to maintain the record of

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rights up-to-date. These can never be held as documents of

title and cannot create any title. Entering a mutation or

reporting a factum of acquisition of any right in the property

with Patwari is a ministerial act which cannot confer or

extinguish any right in the property unless the very

acquisition of any right is established through evidence. The

factum of proof lacks in the case of defendant-petitioners, so,

the suit was rightly decreed in favour of the plaintiff-

respondents. Reliance in this regard can be placed on the

case of “Khalil Ahmad Vs Abdul Jabbar Khan and

others” 2005 SCMR 911 citation (b). It will not be out of

place to repeat for further clarification that these were the

sale transactions in favour of Maj. Rtd. Habib Ullah Khan,

the predecessor of defendant-petitioners, during pendency of

pre-emption suits by the predecessor of the plaintiff-

respondents and said Habib Ullah Khan was impleaded as

defendant in the said suits. Said pre-emption suits, as earlier

discussed, were decreed in favour of predecessor of the

plaintiff-respondents and then the property was accordingly

incorporated in the Revenue Record during partition

proceedings. So transfer of said property again in the name of

predecessor of the defendants in the year 1966, is alone

sufficient to hold that these sale mutations have been based

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on fraud and collusion and were rightly held so by the Courts

below.

15. The impugned judgments of the two Courts

below being well reasoned and based on proper appreciation

of evidence are not open to any interference by this Court in

its revisional jurisdiction. Resultantly, this revision petition

being meritless stands dismissed.

Announced

02.05.2016

CHIEF JUSTICE

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Any misstatement is made or fraud is again

committed by her before the Courts. Copy of this

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judgment be also placed on her personal file with

the Provincial Bar Council and she should also

tender apology to the learned Trial Court.

Announced:

22.04.2016

CHIEF JUSTICE

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any misstatement is made or fraud is again

committed by her before the Courts. Copy of

this judgment be also placed on her personal

file with the President Bar Council and she

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should also tender apology to the learned Trial

Court.

Announced:

22.04.2016 CHIEF JUSTICE

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